Edo
Period Japan: 250 Years of Peace
Meg
vanSteenburgh
Legal Systems
Very Different From Our
Own
Spring 2006
Introduction
“Unreason
is less than reason. Reason is less than law. Authority is greater than law, but
heaven is
supreme.”
-Tokugawa
saying
The hallmark of the
Tokugawa dynasty (1603-1867) was a strong belief in the Neo-Confucian ideals of
morals, education, and strict hierarchical class structure in both government
and society. After hundreds of years of civil wars, the fifteen Tokugawa
shoguns made their foremost goals political stability and complete isolationism.
The rice-based economy of Tokugawa period Japan was a complex form of feudalism.
It was a country symbolically ruled by the emperor in Kyoto, while in actuality
ruled by his shogun, or chief military advisor, in Edo.
The
shogun implemented an administrative system which effectively organized Edo
period society into a strict hereditary caste system in descending order of
Neo-Confucian merit: warrior, farmer, artisan,
merchant.[i]
The different classes were separated by
bungen,
or lines of demarcation, which were almost impossible to cross. Below the
merchants in the hierarchy were the
eta,
or untouchables, who were not actually considered people and were largely
outside the purview of any governmental body. Another group, the
buke,
or clergy (both Shinto and Buddhist) existed outside of the regulation of the
feudal government to a large extent. The
buke
were required to pay tribute to the
feudal government but effectively regulated themselves and did not go to the
shogunate for the settlement of disputes; which was one of the only ways that
the peasant class ever interacted with the shogunal government. The Confucian
system was based on the idea that superiors ruled by example; their subordinates
had no rights, per se, but rulers had a moral duty to treat subordinates
correctly. Theoretically, the law would only step in to punish a failure of this
moral duty, not to vindicate the rights of the
victims.[ii]
Shogunal
power rested on three key strategies. The first was using divine power in the
name of the emperor to maintain legitimate authority that was beyond question,
though the emperor himself was little more than a puppet and was virtually
imprisoned in the imperial palace in Kyoto. The second was complete control of
the daimyo, or feudal lords, in order to prevent a repetition of the internal
strife and intrigue that had plagued the country until its unification in by
Tokugawa Ieyasu in 1603 after the battle of Sekigahara. And the third was
isolation, or
sakoku,
from not only the West but also from the Chinese mainland to minimize the threat
of foreign influence or inspired rebellion. In fact, by 1635 the Japanese people
were forbidden to travel abroad and those who were already abroad were not
permitted to come
home.[iii]
All foreign trade was suspended, except for trade with the
Dutch.
However, the entire Dutch trading mission was expelled to Dejima, an
artificially made island in Nagasaki
harbor.[v]
When the Portuguese attempted to re-establish trade relations with the shogunal
government their entire delegation was summarily executed upon
arrival.[vi]
Another
Western influence that the Tokugawa tried to eradicate was Christianity. In some
village codes, which were largely a reflection of shogunal wishes, there appear
articles like: “The peasants are investigated every month, and comings and
goings are checked with the pertinent temple in each case to verify affiliation.
Therefore, should there be a Christian in this village, not only his
goningumi
[village council] and the headman
but the entire village will be
punished.”[vii]
Christianity was most likely viewed by the shogun as dangerous to the stability
of the new nation because of its direct opposition to the Confucian ideal of
maintaining the status quo that the shogun was attempting to instill in the
people. Another problem with Christianity is that its influence had always been
strongest in Kyushu and southern Honshu where the most powerful internal enemies
of the shogun had their fiefs and the shogun did not want to allow those lords
to gain the sympathy of and ally themselves with the Western powers in any
way.[viii]
The
stability gained by isolation and strict class control saw feudal Japan double
its population from fifteen-million to thirty-million in the first half of the
period as well as an increase in urbanization and the influence of the merchant
class.[ix]
Though Confucian ideals would rank merchants at the bottom of the class
structure as economic parasites, since they did not actually produce anything,
during Edo period Japan they became the creditors of overlords and samurai
alike. While this did not officially increase their status in polite society,
holding the purse strings of a powerful overlord could guarantee many perks in a
society which continued to emphasize agrarian taxation and failed to tax the
ever-expanding urban
industries.[x]
Villages,
which operated as largely autonomous units, were also expanding their industries
with enterprises like silk production, textile weaving, and sake
brewing.[xi]
However, many of these entrepreneurial villagers failed at their endeavors, went
into debt, and migrated into the cities to form the base of the unskilled labor
force which fed the increasing
urbanization.[xii]
This growth and expansion peaked during the Genroku
period
(1688-1704). Another interesting note is that between 1600 and 1720 the
percentage of arable land in Japan nearly
doubled.[xiv]
This was most likely in part due to the fact that the lower classes could pursue
their enterprises, be it sake brewing or irrigation projects, fairly
single-mindedly since they were completely excluded from political activity
outside the village
unit.[xv]
In fact the legal system of Tokugawa Japan had two very distinct jurisdictions
which interacted very rarely: the shogunal government and the village
government.
Politics,
Government and Social
Structure
The
Bafuku
The
shogunal government was called the bafuku, literally tent government, a term
which was derived from the military structure of the shogunate. At the top of
the command structure was the shogun
himself.
Under the shogun was the
tairo,
or prime minister, who would occasionally be called upon to rule as a regent
during the minority of a
child.
Since the shogun was a military position a woman could not rule as regent like
an empress could in the imperial court. There was a council of state composed of
half a dozen
roju
(elders) who were appointed by the shogun and advised him on political matters
and another half a dozen
wakadoshiyori
(junior elders) who dealt with the problems of petty
vassals.[xviii]
The
hyojoshu,
or judicial council, was formed by adding a few more members to the council of
elders and was responsible for the various government departments such as
finance, police, city government, and religious
organizations.[xix]
They functioned as both executive administrators and
judges.[xx]
The next level of government were the feudal lords.
The
DaimyoThe Tokugawa also
imposed a strict hierarchy on the daimyo (feudal lords). The first group of
daimyo was
shimpan.
Shimpan
were major branches of the shogun’s own
family.[xxi]
Shimpan
families could supply a member to take over as shogun if the current shogun died
without male
issue.[xxii]
The second group was called
fudai
(inside lords); these were the lords who had been friendly to or loyal to Ieyasu
Tokugawa before the battle of
Sekigahara.[xxiii]
The last, and potentially troublesome, category of lords were
tozoma
(outside lords), who had been enemies of the Tokugawa before
Sekigahara.[xxiv]
While being a
fudai
lord had its privileges, it was
often a significant financial burden because the shogun would use his most loyal
vassals to keep watch over the
tozoma
lords, which often required moving
their large estates around many times throughout the
year.[xxv]
In addition to being categorized as loyal and disloyal, daimyo were also ranked
according to the assessed value of their rice
production.[xxvi]
In order to qualify as a daimyo the land must have an annual minimum yield of
10,000
koku
(about 50,000 bushels of
rice).[xxvii]
The lesser vassals whose land was valued at under 10,000 koku were called
hatamoto,
or
bannermen.[xxviii]
In the early seventeenth century Japan produced an estimated 24.5 million
koku
annually from daimyo fiefs of 10,000
koku
or more, and of this the Tokugawa held lands produced about 8.5 million
koku.[xxix]
Tokugawa
shoguns implemented several ingenious way of keeping control over their daimyo;
the most well-known is the concept of
sankin-kotai,
which literally means alternate attendance. The shogun required each daimyo to
spend four months out of the year, or sometimes every other year, in residence
at Edo and the rest of the time at their own
han
(fiefs).[xxx]
However they had to leave their wives and families at Edo as an insurance policy
for their good behavior; since family was so important in that society there
would be no point in overthrowing the shogun if you had no family to pass the
honor or the position on to. The burden of alternate attendance also required
heavy financial expenditures on the part of all the daimyo, usually about a
quarter of the annual daimyo income, to travel in the custom that befit them and
maintain at least two separate
estates.[xxxi]
The shogun knew that it would have been nearly impossible to finance an army
without any extra income. The word “alternate” also referred to the
idea that each category of daimyo was divided into two smaller groups, one was
in residence at Edo while the other group was at their
hans.[xxxii]
So the tozoma
lords were never all in the same
place at the same time. In this way the shogun even further hampered collusive
efforts to thwart his rule as well as providing an economic boon to the country
in the form of frequent and expensive processionals to and from the shogunal
capital which fed the growing towns along the Edo road.
[xxxiii]
Other
forms of shogunal control over the daimyo included bans on any repairs,
strengthening, or enlarging of the fortresses of any daimyo without the express
permission of the shogun, the constant surveillance of the
metsuke
(secret police), and compelling the
tozoma
lords to undertake public works
projects as a further financial
burden.[xxxiv]
The daimyo were also forbidden any direct contact with the emperor or the
imperial family in Kyoto to ensure that his divine power belonged to the shogun
and only the
shogun.[xxxv]
Legislation
One
of the trademarks of the Tokugawa bafuku was government by documents. Legal
disputes which were appealed from the village level to a shogunal intendant had
to be written in the proper form, which was difficult since many villagers did
not know how to write the most basic characters, let alone a legal
document.[xxxvi]
The bafuku also required
kokudaka
(tribute) data from all the villages and
daimyos.[xxxvii]
This data consisted of a complete national census every six years by the
1720’s as well as copies of the village population registers in order to
be sure that the appropriate amount of tithe was being passed up the ladder.
[xxxviii]
The amount of required tribute, determined by the daimyo and based on this data
was imparted to the village headman by the bafuku intendant in a document called
the
nenguwaritsukejo,
or yearly tribute rate
letter.[xxxix]
Villages were required to acknowledge, in writing and with the seal of the
headman, that they had received this and any other daimyo
directives.[xl]
To
clarify the roles of bafuku intendants the shogun promulgated the
Kujikata
Osadamegaki in 1742. The
Osadamegaki,
which was based on the
ritsu-ryo,
a set of administrative codes drawn up in the eighth century and largely
imported from Tang China, was a “secret” manual issued to
administrators only which consisted of two
books.[xli]
Book one listed eighty-one rules and directives and book two listed the
penalties for violating those rules (both civil and
criminal).[xlii]
The shogun also had a large contingent of
metsuke
who were concentrated in Edo, but
also spread throughout the countryside to report any subversive plots or
incipient rebellions to the
shogun.[xliii]
The
bafuku also adopted status legislation aimed at separating the peasant class
from the warrior class. The most well-known example of this is the
Keian no
Ofuregaki, issued in 1649. The first
few articles deal with the governmental hierarchy, the middle section is largely
advice to peasant farmers such as: “One should sharpen hoes and sickles
every year before the eleventh day of the first month.” and “...the
poor who do not own large fields should think well about a means of living
throughout the year; for instance, if there are many children in a family, some
can be given away and some can be sent out as
servants.”[xliv]
And the last few articles address themselves mainly to issues of tribute with a
touch of sage Confucian advice thrown if for good measure. For example, the last
article begins with “If we are right-minded, no one treats us badly. If
someone treats us badly, that is because our heart is not in the right place.
The same is true for all relationships between intendants and peasants, masters
and servants, parents and children, husbands and wives, fellow peasants, and
headmen and
peasants.”[xlv]
Peasants
were also forbidden to carry long swords or use surnames in public or on
official
documents.[xlvi]
The peasants could and did have last names, but daimyo identified the peasants
with the land they occupied rather than with their
lineage.[xlvii]
Peasants were also only allowed to wear cotton garments and were required to
dismount when encountering a
samurai.[xlviii]
In fact samurai had the right to kill any peasant at will who had offended them.
Bafuku legislation, while tirelessly precise on the subjects of crime (including
status crimes) and taxes was not meant to govern the peasants’
interactions with each other. The level of governance dealing with inter-village
matters was the village council.
The
Village The village had its
own hierarchy which was dictated by the bafuku through regulations like the
Keian
no
Ofuregaki, but was also a product of
custom. Villages were largely autonomous and were only incorporated into the
bafuku system insofar as their regulation was necessary to keep the tributes
flowing smoothly uphill. At the top of the village hierarchy were the titled
peasants or
honbyakusho
who held a communal interest in grassland, mountain land and of course the most
important village property interest; water for
irrigation.[xlix]
The
honbyakusho
were the official tribute deliverers and were also eligible to be members of the
goningumi,
or group of five, which were appointed by the local
overlord.[l]
The
goningumi
were an intra-village alliance of families that were responsible not only to
help each other and settle village disputes but also to keep an eye on each
other as a sub-level of
metsuke.[li]
For the latter reason it was decreed that the
goningumi
should not be too closely related by familial
ties.[lii]
The
goningumi
acted as a village council that was under the authority of the local daimyo, but
was allowed to settle village problems and draw up codes and regulations
regarding local
governance.[liii]
The heads of each
goningumi
family were called
kumi,
and they acted as council for the village headman or
nanushi.
Beneath
the
honbyakusho
in the hierarchy were the
mizunomi
byakusho,
literally water-drinking
peasants.[liv]
The
mizunomi
byakusho
were pure tenants with no land right
whatsoever.[lv]
Beneath them were the
cho-nai,
or
co-residents.[lvi]
The
cho-nai
were women, children and other dependants of either
mizunomi
byakusho
or
honbyakusho.[lvii]
Next in line came indentured servants
(genin)
and then lifetime servants
(fudai).[lix]
At the bottom of the chain were the non-peasants, people like craftsmen and
doctors who moved into the village but were not attached to the
land.[lx]
Unlike samurai status which was passed down to all the descendants of a samurai,
only one of the
honbyakusho’s
sons could inherit their
title.[lxi]
The other sons would form branch families, or
kakae,
to the main titleholder and would be subordinate to the main titled
family.[lxii]
Village
laws functioned largely as a supplement to bafuku
regulation.[lxiii]
The local daimyo kept track of the tribute owed to him by requiring village
population registers which were updated
yearly.[lxiv]
These registers recorded the person’s name, social and legal status, and
by 1665 their religious
affiliation.[lxv]
Villagers had to approve, or at least legitimize the registers, along with the
village laws, or
zensho
goningumi,
by affixing their seals; many of which were kept by the
nanushi.[lxvi]
The male head of the household had legal authority over all of its
members[lxvii]
and the typical village consisted of only a few hundred
people.[lxviii]
Village
law also severely restricted intra-village mobility by requiring an
okurijo,
or certificate of leave, whenever one wanted to move from one village to
another.[lxix]
This is because the disappearance of a household would change the distribution
of tribute owed to the daimyo, and would presumably leave the land that the
household had vacated uncultivated, thus lessening overall production for that
season and increasing the tribute burden on everyone else in the
village.[lxx]
This was further complicated by the fact that the daimyo could, and frequently
did, raise tribute levels to suit their needs. Therefore, without a proper
okurijo
it was impossible to leave one’s own village legally or be added onto the
village population register of one’s new village. Even temporary
employment elsewhere would be noted in the registers, but would not require an
okurijo.[lxxi]
In some village codes it is required that even people who wish to stay overnight
somewhere else for business or a pilgrimage must report the details of the trip
to the
goningumi.[lxxii]
Another
form of tribute required aside from rice tribute was a service tribute called
yaku.
Individual peasant households were responsible for national duties such as
portage duties at the various way stations along the main roads for the
daimyo’s yearly processions to and from
Edo.[lxxiii]
They could also be mobilized to serve in the grand shogunal processions to
Ieyasu’s shrine in
Nikko.[lxxiv]
According to eyewitnesses these shogunal processions were so large that they
stretched the entire length of the road form Edo to Nikko, a distance of nearly
145 kilometers, and required 250,000 porters along the
way.[lxxv]
Peasants could also be responsible for non-combative military service, although
no such military nationalization was ever required except for the quashing of
the Shimbara rebellion in
1637.
The
Kawata There were people who
existed outside the tightly regulated structures of both village and bafuku, the
untouchables, or
eta,
were considered non-human, and
unlike the status of
hinin,
or beggars (who were also considered non-human) the classification of
eta
was
hereditary.[lxxvii]
Eta
means “plentiful dirt” or polluted, however this class of people
referred to themselves as
kawata
which means leather
worker.[lxxviii]
The main function of the
kawata
was skinning and disposing of dead livestock and making leather out of the
hides, but they were also employed by villages and bafuku to catch criminals,
guard and execute
prisoners,
and policing festivals and
markets.[lxxx]
Kawata
lived in their own communities, separate from the villages that they served and
were under no authority from local village
heads.[lxxxi]
Since these communities were set apart from the rest of society it was not
uncommon for fugitives to seek refuge in
them.[lxxxii]
The bafuku largely left them alone, but they did have a representative in Edo
who would settle disputes between different
kawata
communities.[lxxxiii]
Geisha,
which literally means “person of the arts”, were professional female
entertainers, quite distinct from prostitutes and were a completely
self-regulating community. In Tokugawa period Japan the
chonin,
or townsmen, who were largely imperial administrators, shogunal administrators,
or rich merchants were the most frequent patrons of the pleasure quarters.
Formal family life and arranged marriages were still the norm and there was no
polite mixed society outside the family, so geisha became the only female
company that it was appropriate for a man to be seen with in public other than
his family. While a geisha may have a sexual relationship with one or several of
her clients, it is not her primary purpose and she has no fixed price, like a
common prostitute. Sexual favors from geisha would be doled out in response to a
particularly lavish gift, but there would be no quid pro quo. The only time a
geisha would accept money for sexual favors would be her first sexual
experience, as part of a ritual during which her virginity is sold to the
highest bidder in a ceremony called
mizuage
(red water).
A geisha trained
for five to seven years usually from the age of five or six in the arts of
poetry, dance, music, and banter. At this same time the geisha in training, or
maiko,
would act as a maidservant in the teahouse in which she lived. The
maiko
would also be taken under the wing of an older geisha, usually in the same
teahouse, but not always, who would act as a big-sister and introduce the new
maiko
to the subtleties of the floating world. This apprenticeship system was a large
part of the disciplinary system of the pleasure quarters. The
maiko’s
failure was a disgrace, not only for her, but for her big sister as well. A
geisha’s reputation was her only true currency. She did not own anything
else, not even her clothing, which was usually the property of the teahouse she
was bonded to; even her make-up and undergarments were not her own. If a geisha
lost her reputation and was unable to earn her way, she would be kicked out with
absolutely nothing, forced to sell herself or beg on the streets. “A
geisha lives on the edge of a knife, one false move or even a rumor could end
her career”.
The floating
world, as the pleasure quarter was called, was its own jurisdiction and guarded
its secrets jealously. Any geisha who attempted to go outside the confines of
the floating world for justice would find herself unwelcome in any reputable
teahouse in the district, effectively banished from society and denied her only
means of income. Geisha who were banished from the reputable teahouses would
either leave the city in search of another pleasure quarter where their
reputation had not preceded them, or they would become common prostitutes. While
it was completely acceptable for even a high-ranking official to be accompanied
to the theatre or a sumo match by a geisha (or several), visiting a prostitute
was something that one did secretly.
Law
and Punishment
“Samurai
fight with weapons, peasants with
lawsuits.”
-Tanaka
Kyugu, 1721
There
was no word that directly translated as “rights” in Tokugawa period
Japan.[lxxxv]
When Japanese scholars went abroad during the Meiji Restoration to translate
European laws in an attempt to create a new legal system one of the central
concepts in each of these systems was the idea of personal rights. The
translation, as with most new words, was a new combination of Chinese
characters. The first character,
ken,
means quantity or measure, and the last character,
ri,
means good circumstances or
benefit.[lxxxvi]
However in Tokugawa period Japan the bafuku used the Dutch word
regt
to denote the foreign concept of rights.
[lxxxvii]
Crime
The
Village: Finding the Culprit
The
bafuku considered village justice to be a secondary and separate form of
justice, not a part of its own judicial mechanisms, and allowed local
administrators to deal with village disputes as they saw fit except in the case
of certain serious
crimes.[lxxxviii]
Manslaughter, theft, gambling and arson are among the crimes that must be
reported to the bafuku intendant.
[lxxxix]
An
interesting facet of criminal justice in Tokugawa Japan is the idea of
irefuda,
or fighting crime by voting on the culprit. If there was a recurring crime like
theft or arson, that villages were not allowed to punish but were required to
report to the bafuku authorities, a vote could be taken within the village to
determine the identity of the
offender.[xc]
The person who received the most votes would be incriminated along with anyone
who did not participate in the voting
process.[xci]
Then the “guilty” party and his supporters, if any, would be thrown
in
jail.[xcii]
If the crimes kept on occurring however votes would continue until the crime
spree stopped with each vote incriminating a new
culprit.[xciii]
Oftentimes the villagers would be required to swear oaths before the gods or
drink holy water prior to each
balloting.[xciv]
Another interesting slant on this entire process is the idea of
rakushogisho,
literally “dropped oaths before the
gods.”[xcv]
An anonymous written accusation would be dropped in front of a shrine, and
whoever had the misfortune of picking it up first was obliged to implement it,
since
rakushogisho
were seen as true signs from the gods, not merely mortal
accusations.[xcvi]
Another
way of ferreting out guilt and deciding disputes in Tokugawa times was trial by
ordeal. For example, in 1619 there is a documented case of a border dispute
between two villages in the Aizu domain which had escalated into an armed
conflict.[xcvii]
The local officials had taken many depositions but the facts were still in
dispute, so they ordered the two villages to a fire ordeal at the local Shinto
shrine.[xcviii]
Each village had a representative who donned ceremonial dress and were required
to grasp a red-hot iron as many times as they could while holding the
kumanogoohoin,
a ceremonial document used for solemnifying
oaths.[xcix]
The loser’s hands and feet were cut off and he was buried in a tomb which
served as the new border marker between the
villages.[c]
The
Village: PunishmentCapital
punishment was reserved for the bafuku and was only doled out for the gravest
offenses.[ci]
The most serious form of punishment available to the village authorities was
banishment. Banishment, or
kyuri,
was not only a punishment for the criminal; it was also a way to ensure the
other villagers against vicarious liability
(enza)
which was an inherent part of the Tokugawa legal
system.[cii]
Occasionally the relatives, the village head, or sometimes the entire village
could be punished for the crimes of one of its
members.[ciii]
Kyuri
needed to be sanctioned by the parents, the village officials, and the bafuku
representative who would take the name of the absconder off the population
rosters.[civ]
It is important to note that
kyuri
could not be enacted against a status superior such as a parent and it made the
disinherited person a legal
non-person.[cv]
You could also banish someone in absentia if they had fled after committing a
crime, however you could only do this after a real effort, officially six
periods of thirty days, had been made to apprehend the person in
question.[cvi]
However, the most common form of punishment was ostracism, since it required no
permission from the intendant or
goningumi
heads.[cvii]
Ostracism
was called
murahachibu,
which literally means eight parts out of
ten.[cviii]
Those who had been ostracized from their village could not be assisted by the
community for eight out of the ten traditional parts of community
life.[cix]
Those eight parts were coming of age ceremonies, weddings, memorial services,
births, sicknesses, floods, travel, and building and
repairs.[cx]
They could also not be greeted and could not participate in village festivals or
meetings.[cxi]
They could, however count on the rest of the village for assistance during a
fire and in the preparation of a funeral, the remaining two parts of community
life.[cxii]
However, those who were ostracized also did not have to perform
yaku
and were unable to pay
tribute.[cxiii]
While ostracism was a form of inter-village unofficial banishment, there was
also extra-village unofficial
banishment.[cxiv]
This could be triggered when someone was accused of a crime and as a result of a
vote, and often without material proof, the person would be expelled from the
village, but not removed from the population
roster.[cxv]
The
Bafuku: PunishmentPunishment
in Tokugawa period Japan was incredibly harsh. Theft, for instance was
punishable by banishment, at the lightest end of the scale, or banishment
accompanied by mutilation such as cutting off the ears and
nose.[cxvi]
Female culprits were usually not physically mutilated, but rather paraded
through the village naked, which for a woman at that time was likely just as
bad.[cxvii]
Other possible punishments included ostracism, special identifying garments, or
forced village service like field guard duty or sake expenses at
festivals.[cxviii]
Interestingly enough, though theft was a crime, so was not reporting
it.[cxix]
If a theft was discovered and had not been reported, the victim of the theft
would receive the same punishment as the
thief.[cxx]
There were also different punishments for the same crime depending upon the
status of the
individual.[cxxi]
And torture was a completely acceptable method of getting a
confession.[cxxii]
There
were about half a dozen death penalties which were graded according to the
status of the victim and the perpetrator, the motives, and the degree of
participation.[cxxiii]
For instance, killing a status inferior was punished by banishment, and so was
executing a contract murder, but if the murder had been premeditated and for
gain it carried the death penalty as did contracting a
murder.[cxxiv]
If there were accomplices, the one who struck the first (but not necessarily the
killing) blow would be executed, and the others who physically participated
would be
banished.[cxxv]
Death penalties were always beheadings, but depending on the nature of the crime
various other aspects could be added like crucifixion, gibbeting, confiscation
of the criminal’s property, or making the corpse available to the local
samurai for sword
practice.[cxxvi]
Civil There
was no distinction between contract and tort in Tokugawa
Japan.[cxxvii]
And frequently punishments for crimes and settlements of civil suits were
interchangeable. The bafuku had very little patience for civil suits since they
were largely divorced from the main shogunal goal of maintaining the hierarchy
and seeing that tributes flowed
smoothly.[cxxviii]
While crimes were dealt with from the top down, it seems that civil matters were
exactly the opposite. It is important to remember that villagers almost never
dealt with strangers so most conflicts could be, and were, settled by mediation
and social pressure inside the village
system.[cxxix]
In fact some
goningumi
zensho which specifically mention
lawsuits seem to make this preference clear with articles like: “People
who... like quarrels and lawsuits, or do all kinds of bad things should not be
hidden.” and “In the case of quarrels and disputes, the locals have
to gather, put a stop to them, and settle the matter.”
[cxxx]
However, occasionally there was just no way for the village to settle a problem
and they would have to appeal it to the local bafuku intendant who would then
decide whether or not to help, since bafuku involvement was completely
discretionary.[cxxxi]
Even when the bafuku intendant stepped in, it was usually as a mediator rather
than a
judge.[cxxxii]
Jurisdiction
ran with the land in Tokugawa Japan so the local daimyo was the first and last
resort for any kind of appeal, unless it was a diversity suit, which were fairly
uncommon but were heard by the bafuku in
Edo.[cxxxiii]
Any conflict over dowry, succession, border dispute, or land sale was likely to
be settled in the village because it was widely understood that bafuku justice
was mostly about what was good for the bafuku, not necessarily what was the
right solution to the problem. There were no restrictions on land sales among
peasants.[cxxxiv]
However, a samurai who was unable to find a samurai buyer and wanted to sell
land to a peasant had to report the price to a samurai council who could re-set
the price as they saw fit and attach certain privileges and restrictions to the
land
sale.[cxxxv]
Land disputes received preferential treatment from the bafuku when hearing
complaints, most likely because those were the only civil disputes which
directly affected
tribute.[cxxxvi]
By
the middle of the Tokugawa period most merchants had organized themselves into
self-regulating guilds which handled their own disputes much like the villages
without resorting to bafuku
justice.[cxxxvii]
In the few and tightly knit trading cities on the coast a bargain was enforced
largely by threats to reputation, reneging would be economic
seppuku.[cxxxviii]
Conclusion
Towards
the end of the Tokugawa period the villages became less and less autonomous as
the pressures of urbanization and the swollen bureaucracy of the bafuku closed
in on them. The strict class structure gave way to the more modern
entrepreneurial spirit of Japan that we see today, even though history and
tradition still play a large part in Japanese family life. The Meiji restoration
brought a still antiquated Japan into the glare of the modern world and old
traditions like the samurai and
eta
faded away along with status restrictions and wars fought without guns.
Isolationism may have been the best way to bring order to a country which had
suffered from civil strife and turmoil for so long, but in the end the
temptations of trade and modernity were too much for Japan to
resist.
Appendix
1
Timeline
• 1603
Battle of Sekigahara: Tokugawa Ieyasu becomes shogun, establishes the Edo
shogunate.
• 1619
The
hishigaki
kaisen
(cargo ships) begin to sail regularly between Edo and Osaka.
• 1635
Shogunate forbids Japanese to travel overseas. Start of the
sankin
kotai
• 1637
Shimbara Rebellion.
• 1639
Entry of Portuguese ships forbidden. Start of
sakoku,
a period in which Japan was closed off to the outside world.
• 1641
Dutch Trading Mission is moved to Dejima in Nagasaki which becomes the only port
in Japan where foreign trade is allowed.
• 1649
Promulgation of the
Keian
no
ofuregaki, a document outlining the
duties and conduct of the farmers.
• 1657
Great Edo Fire.
• 1669
Ainu rebellion in Ezochi (Hokkaido).
• 1671
Kawamura Zuiken opens eastern sea route. Western sea route is opened in
following year.
• 1688
Start of Genroku Period (to 1703).
• 1732
Kyoto Famine. Rice stores broken into as prices on rice soar.
• 1853
Admiral Perry arrives in Uraga and demands that Japan opens its ports.
• 1854
Japan concludes friendship treaties with the United States, Britain, Russia,
France and the Netherlands. The ports of Hakodate, Shimoda and Nagasaki are
opened to foreign trade.
• 1868
Meiji Restoration. Edo's name is changed to Tokyo ("Eastern
Capital").
[i]
Henderson &
Torbert
Traditional Contract Law in Japan and China,
5, University of
Washington
Press,
March
1992.
[iii]
Meyer,
Japan:
A Concise History,
102, Rowan &
Littlefield 1993.
[v]Id
at
101.[vi]
Morton,
Japan:
Its History and Culture,
122, McGraw-Hill
2005.
[vii]
Goningumi Rules,
Shimo-Sakurai, Kita-Saku District, Shinano, 1640. Article
2.[viii]
Morton, at 122.
[ix]
Meyer, at
107.[x]
Id.
at
109.
[xiv]
Ooms,
Tokugawa
Village Practice,
103, University of
California Press
1996.[xv]
Id.
[xviii]
Id.
at
98.[xix]
Morton, at
121.[xx]
Id.
[xxi]
Id.[xxii]
Morton, at
120.[xxiii]
Meyer, at
98.[xxiv]
Id.[xxv]
Morton, at
120[xxvi]
Meyer, at
99.[xxvii]
Id.[xxviii]
Morton, at
120.
[xxix]
Meyer, at 99.
[xxx]
Morton,
at
119.[xxxi]
Meyer, at
98.[xxxii]Morton,
at
119[xxxiii]
Meyer, at 99.
[xxxiv]
Morton, at
120.[xxxv]
Id.
[xxxvi]
Ooms, at
41.[xxxvii]
Id.
at
314.[xxxviii]
Id.
at
13-14.[xxxix]
Id.
at
112.[xl]
Id.
at 235.
[xli]
Dean,
Japanese
Legal System: Text and Materials,
65,
Cavendish
Publishing Ltd.
1997.[xlii]
Id.
at
87.[xliii]
Meyer, at 98.
[xliv]
Keian no
Ofuregaki, Articles 7 and
18.[xlv]
Keian no Ofuregaki,
Article 35.
[xlvi]
Ooms, at
132.[xlvii]
Id.
at
133.[xlviii]
Id.
at 132.
[xlix]
Id.
at
31.[l]
Id.
at 18.
[li]
Id.[lii]
Goningumi Rules, Shimo-Sakurai, Kita-Saku District, Shinano, 1640. Article
1.[liii]
Ooms, at 13.
[liv]
Id.
at
25.[lv]
Id.[lvi]
Id.[lvii]
Id.
[lix]
Id.[lx]
Id.[lxi]
Id.
at
168.[lxii]
Id.
at 25.
[lxiii]
Id.
at
196.[lxiv]
Id.
at
12.[lxv]
Id.
at
13.[lxvi]
Id.
at122.[lxvii]
Id.
at
14.[lxviii]
Henderson, at 4.
[lxix]
Ooms, at
16.[lxx]
Id.[lxxi]
Id.
at
24.[lxxii]
Goningumi Rules, Shimo-Sakurai, Kita-Saku District, Shinano, 1662. Article
24.
[lxxiii]
Ooms, at
93.[lxxiv]
Id.
at
96.[lxxv]
Id.
[lxxvii]
Id.
at
244.[lxxviii]
Id.
at
243.
[lxxx]
Id.
at
250.[lxxxi]
Id.[lxxxii]
Id. at
291.[lxxxiii]
Id.
at 253.
[lxxxiv]
All descriptions of geisha custom are taken from the accounts of life in the
floating world as described to me by Hosogai Naoko.
[lxxxv]
Feldman,
The
Ritual of Rights in Japan: Law, Society, and Health Policy,
16, Cambridge
University Press
2000.[lxxxvi]
Id.[lxxxvii]
Id.
[lxxxviii]
Ooms, at
196.[lxxxix]
Id.
at
197.
[xc]
Id.
at
223.[xci]
Id.[xcii]
Id.[xciii]
Id.[xciv]
Id.
at
231.[xcv]
Id.
at
225.[xcvi]
Id.
[xcvii]
Id.
at
231.[xcviii]
Id.[xcix]
Id.[c]
Id.
at 233.
[ci]
Goningumi Rules, Shimo-Sakurai, Kita-Saku District, Shinano, 1662. Article
4.[cii]
Ooms, at
44.[ciii]
Id.[civ]
Id.[cv]
Id.
at
45.[cvi]
Id.
at
48.[cvii]
Id.
at 197.
[cviii]
Id.
at
216.[cix]
Id.[cx]
Id.[cxi]
Id.[cxii]
Id.[cxiii]
Id.
at
219.[cxiv]
Id.
at
221.[cxv]
Id.
[cxvi]
Id.
at
226.[cxvii]
Id.[cxviii]
Id.[cxix]
Id.
at
228.[cxx]
Id.[cxxi]
Id.
at
326-7[cxxii]
Id.
at 330.
[cxxvii]
Henderson, at
10.
[cxxviii]
Id.
at
329.[cxxix]
Henderson, at
7.
[cxxx]
Goningumi Rules,
Shimo-Sakurai, Kita-Saku District, Shinano, 1662. Articles 16 and
18.[cxxxi]
Henderson, at
9.
[cxxxii]
Id. at 7.
[cxxxiii]
Id. at
9.
[cxxxiv]
Ooms, at
206.[cxxxv]
Id.[cxxxvi]
Henderson, at 10.